The assertion that ‘justice delayed is justice denied’ is now clichéd. Sadly though, persistent delays in criminal proceedings have continued to be the most potent canker eating deep into the criminal justice system in Sierra Leone. It was quite a laudable move and a plus to the judiciary when Justice Abdulai Charm of High Court No. 1 Freetown, on the 3rd October 2013, discharged one Mohamed Jalloh alias B.J. for want of prosecution. The accused was indicted on the 20th October 2010 on charges of conspiracy and robbery with aggravation. Mohamed Jalloh had spent about three and a half years behind bars as he went through preliminary inquiry at the Magistrate’s Court before the matter was committed to the High Court for trial. It is sad to note that the prosecution could not present a single witness to discharge the burden of proving the accused’s guilt, and has since been asking for an adjournment for no just cause. The judge did not hesitate to discharge the accused person and noted, inter alia, that his constitutional rights had seriously been violated. “When maters are delayed, everyone blames the judiciary, not knowing that other factors are responsible”, Justice Charm remarked with frustration, while addressing the court on the persistent absenteeism of jurors and prosecuting counsel in matters which have stayed unnecessarily too long in court.
A host of other cases amongst which are: The State v. Ismael Dean Mansaray & 2 Others, The State v. Hassan Jalloh, The State v Dr. Abass Bundu, The State v. Mohamed Yamba Kamara & Others, indicted for similar offences of conspiracy, robbery with aggravation and murder, have had the prosecution dragging their feet in the court since 2011.
The number of cases adjourned daily in our courtrooms on the grounds of absence of the prosecuting counsel or the prosecution’s application for adjournment is unbelievable, if not outrageous. This is not least because of the fact that most often the prosecuting counsel’s application for adjournment is not backed up with compelling evidence to spell the need for such adjournment. Where does this leave the right of the accused to a fair and expeditious trial? Paradoxically, the courtroom itself has become a nightmare for accused persons who spend years and years behind bars, thanks to prolonged periods of judicial lassitude. The real irony is that accused persons are hurriedly arraigned in court in pursuance of the seventy-two hour legal stipulation (for minor offences), yet they spend even more seemingly illegal periods behind bars after their arraignment in court.
A host of other delays in criminal trials is also attributed to juror absenteeism. The law makes provision for felonious offences such as murder and robbery with aggravation to be tried by a judge and a panel of 12 jurors. The jury is a body of persons sworn to give verdict in a legal case on the basis of evidence tendered in court. It is the responsibility of the jury to listen to a dispute, appraise the facts of the case and the evidence admitted, and to decide on the case in conformity with the rule of law. The institution of trial by jury is thus believed to be a significant and an impactful check on judicial power.
It is, however, disheartening to know that apart from the serious setbacks in speedy trials caused in part by lack of cooperation on the part of prosecutors, the jury also constitutes one of the frailest appendages of the criminal justice system in Sierra Leone. In other words, so many questions could be asked of the role/significance and effectiveness of the trial by jury system. Who is responsible for juror absenteeism? Are jurors paid wages or salaries? Does the law stipulate any penal action to be taken against jurors who are absent from court sessions for no just cause?
Too many cases are adjourned purely because of juror absenteeism. The jury being typically twelve in number, and the absence of one meaning failure to form a quorum, juror absenteeism amounts to a giant hurdle to the pace of criminal proceedings and a gross injustice to accused persons who are kept in remand for God knows how long, vaguely awaiting trial on that never-occurring day when the court shall have a quorum of jurors.
Unfortunately, we have only one of the anachronisms of the Criminal Procedure Act 1965 to answer the question of the availability of any penalty for defaulting jurors. Namely, Section 169 of the 1965 Act, which provides for penalty on jurors not attending or refusing to serve, states that any person summoned to attend the court and serve as a juror, who shall without reasonable excuse, fail to attend or refuse to serve, shall be guilty of contempt of court, and be liable to a fine not exceeding fifty Leones. This, once more, raises a whopping concern with regards our archaic laws that are not being updated to reflect contemporary times as Le 50 today is essentially nothing. No doubt judges no longer refer to this provision but rather often threaten to issue bench warrants for the arrest of defaulters, though implementation still remains a distant dream. Since the cases of The State v. Ismael Dean Mansaray & 2 Others, The State V. Hassan Jalloh, and The State V. Mohamed Yamba Kamara & Others were committed early in the year 2011 to the High court, efforts to have a quorum of jurors to proceed in establishing the accused persons’ guilt have been chasing shadows. This is evident from the fact that on the 25 of July 2013 out of the 12 jurors only 5, 4, and 3 were present with regards the above mentioned cases, respectively. This prompted an adjournment to the 3rd of October (almost 3 months), by which date a similar situation recurred, with 5, 5, and 7 jurors present respectively. This was exacerbated by the absence of the prosecutor who sent a representative to apply for another adjournment for no just cause. It was on this ground that the judge noted with dismay thus: “I would not tolerate what happened in the last session which saw the persistent absence of jurors. Inform your colleagues that if they are not present on the next adjourned date, bench warrants will be issued for their arrest.” He further noted that if the prosecution failed to proceed with their case against Mohamed Jalloh, who is standing trial for robbery with aggravation, on the next adjourned date (October 24 this year), he will be admitted to bail.
It was against this backdrop and in a bid to get an objective and balanced picture that Court Monitors of the Centre for Accountability and Rule of Law (CARL) caught up with and interviewed the few jurors (out of the expected dozen) present on that day in High Court No. 1, on what they thought was responsible for the persistent absence of their peers from court. Like their backgrounds, their stories were all similar: many of them were old and infirm, some were retirees, and only one said he was still in active service. They reiterated that serving as a juror in Sierra Leone was such a bore, and that some of them were only doing the job out of patriotism, given the fact that they neither receive any salary or incentive, nor any transportation allowance. “We are not even entitled to the bus assigned to the Judiciary”, said Mr. J. K. Vandy, a retiree of the Sierra Leone Police, resident in the east of Freetown, who has served as a juror for three years now. Another, Mr. Abdul A. Sheriff, an employee of the Government Information Service, recognized the fact that his role as a juror feels like it is part of his job, but that he was constrained to deliver the service because he did not receive any transportation allowance to cover his travel expenses from his office to the court. “We rely only on vague promises; we get no benefits; this will make it difficult for particularly retirees to co-operate”, he added despondently.
Given the debilitating effect of these judicial lapses on the criminal justice system, it would be worthwhile for the relevant authorities to consider the following suggestions and take reasonable and prompt action:
– Ensure that the prosecution, on application for an adjournment, provides a reasonable ground and evidence to justify the need for such an adjournment. This is often not the case in our courts where the prosecution merely requests for an adjournment (many times through the clerk of court) without proffering any reasonable excuse whatsoever.
– Jurors are supposed to be “peers of the accused”, but the jury in this country is such that the jurors are just one category of people–men of advanced age, mostly retirees from government service. Also, the fine for juror absenteeism is quite ridiculous and ineffectual.
Hence, an amendment of the 1965 Act to revisit some of its anachronisms such as the Le 50 fine for defaulting jurors, and to make clearer guidelines as to how to select jurors in respect of particular cases and in view of the particular classes and backgrounds of accused persons, will be all the more useful to enhancing the performance and efficiency of the jury system altogether.
Moreover, if jurors are so important to the criminal proceeding that the absence of a quorum of jurors can stay proceedings in court, then it is only proper to put them on wages, salary, or merely allowances to cover their transportation expenses and incidental costs. Judges, lawyers, court clerks, etc. are paid, after all.